BY CLICKING “I AGREE AND DOWNLOADING THE SOFTWARE YOU AGREE TO BE BOUND BY THIS AGREEMENT. YOU (“LICENSEE”) REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND CONSENT TO BE BOUND BY THEM.
W I T N E S S E T H:
WHEREAS, Licensor is the creator and owner of, certain e-commerce back office database management systems known as Channergy and Channergy Home Office (collectively the “Software”);
WHEREAS, Licensee desires to use such Software; and
WHEREAS, Licensor desires to grant to Licensee and Licensee desires to obtain from Licensor a non-exclusive license to use the Software and related Documentation solely in accordance with the terms and on the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows.
A. “Required Equipment” shall mean the minimum hardware configuration required to operate the Software. The minimum equipment shall consist of the following hardware:
Pentium IV – 2 Ghz processor
1 GB of memory
300 MB of disk space
Monitor with 1024 x 768 resolution
Windows XP or higher
Pentium IV – 2 Ghz or higher
2 GB of RAM
10 GB hard drive
Windows 2000, 2003, NT, XP, Vista or 7
CD-ROM or DVD
Monitor with 1024 x 768 resolution or higher
B. “Documentation” shall mean all user documentation, and other related materials pertaining to the Software which are furnished to Licensee by Licensor in connection with the Software.
C. “License Fee” shall mean the fee associated with a license seat to use the Software on a concurrent user basis (individually a “User Seat”), which shall establish a maximum number of users that may run the program at any one time. For purposes of this Agreement the initial license fee for the first User Seat is $2,500.00 and $1,000.00 for each additional User Seat. Licensor shall have the ability to adjust the License Fee in its sole discretion for future User Seat license purchases or upgrade purchases.
D. “Software” shall mean the computer programs in machine readable object code form referenced herein and any subsequent error corrections or updates supplied to Licensee by Licensor pursuant to this Agreement.
E. “License Term” shall mean the duration of the license, which as long as licensee is in compliance with these terms and conditions shall be perpetual.
2. LICENSE GRANT
Licensor hereby grants to Licensee a non-exclusive right to utilize the Software on a concurrent user basis. The Licensee may install the software on multiple computers or make it available on a computer network or other shared environment. The forgoing notwithstanding, Licensee in only allowed at any one time to have a maximum number of concurrent users equal to the number of User Seats purchased by Licensee.
A. Licensor shall make the Software available to Licensee via download through an internet portal.
B. Licensor shall also make available to Licensee electronic copies of the applicable Documentation for the Software. The Documentation can be found at www.mailware.com/mwdocs.php.
4. IMPLEMENTATION AND MODIFICATIONS
A. Installation of Software. Licensee shall be responsible for the installation and implementation of the licensed Software.
B. Modifications. If Licensee is in full compliance with this Agreement, Licensee may, from time to time, request that Licensor incorporate certain features, enhancements or modifications or other custom programming elements into the Software (“Modifications”). Any such Modifications shall be made on a time and materials basis ($250.00 per hour for standard delivery and $500.00 per hour for rush requests) and be documented in a Statement of Work (“SOW”) approved and signed by the Parties. The SOW shall be incorporated into and be considered part of this Agreement. Any fees paid for custom programming services are non-refundable. Any charges in excess of any amounts estimated on a SOW will be billed on an hourly basis.
C. Title to Modifications. Any Modifications made in accordance with this Section shall be the sole property of Licensor. Licensor may, in its sole discretion, incorporate such changes into the Software and distribute them to all or any of Licensor’s Licensees. Subject to Licensee’s compliance with this Agreement, Licensor grants to Licensee a non-exclusive perpetual license to utilize any Modifications distributed by Licensor under this Agreement.
5. INTEGRATION WITH OTHER SOFTWARE. If the software is to be integrated with any other software program, such integration must be completed by Licensor under a SOW issued in conjunction with this Agreement. Any integration or modification of the Software not performed by Licensor shall void the warranties set forth in Section 11(B) of this Agreement.
6. SUPPORT, TRAINING & ERROR CORRECTION
A. Standard Support. Upon the purchase of a license for the Software Licensee is entitled to receive one year of free e-mail support from the date of purchase. Licensee shall also be entitled to 1 year of free e-mail support from the date of purchase with the purchase of a software upgrade.
B. Additional Support If Licensee is in compliance with all of the material terms of this Agreement, Licensee shall be eligible to purchase and additional cost, the following additional support packages:
1) Prepaid Plan – Phone support may be purchased in 5 hour blocks for $100 per hour ($500.00 per block). Blocks of prepaid minutes do not expire and do not carry any restrictions on the frequency or duration of phone calls the minutes are applied to.
2) No Plan. Support without a plan is billed on an as used basis with payment at the time of the support phone call is made Non-Plan phone support is $225.00 per hour and billed in 15 minute increments.
3) Express Setup. Express set up is a 3 hour plan designed to assist with the installation and setup of the Software. Express setup is billed on a one time flat fee basis at the time of purchase.
C. Remote Assistance. The Software contains a feature in which Licensor through permission of Licensee can take control of Licensee’s desktop to provide technical support services. Remote assistance can be used to help show Licensee how to use certain features or to fix certain problems. The Remote Assistance feature is provided at no additional charge; however phone support charges will apply. If Licensee does not have a Additional Support Package identified in 6(b) above, Licensee will be charged $225.00 per hour in 15 minute increments for remote assistance support.
D. Training. If Licensee is in full compliance with the material terms of this Agreement, Licensee may engage licensor for certain training services. Licensor offers the following training options:
1) Web Based Training. Using the Remote Assistance function of the Software, Licensor can conduct web based training services. Training is provided on an hourly basis and is billed at $200.00 per hour. Training will be conducted on a single phone line, with Licensee calling Licensor’s support personnel. If Licensee requires conference capability, Licensor will provide a conferencing option. Applicable long distance charges may apply and will be billed to Licensee in the event the conference option is utilized. Minimum time for training sessions is 1 hour.
2) Onsite Training. Licensor also offers onsite training in which a customer support specialist will travel to Licensee’s worksite and perform the training. Onsite Training is billed on a daily rate which assumes an 8 hour day (a total of $1600). Any time exceeding 8 hours a day will be billed at the hourly rate of $200.00 per hour. Upon Licensee’s acceptance of Licensor’s quote for onsite training, Licensor will book airline, lodging and ground transportation and will be billed to Licensee at cost. Miscellaneous charges (such as food, gas etc.) will be billed at the completion of the training. A security deposit equal to 50% of the expected charges is due upon Licensee’s acceptance of Licensor’s quote. The balance of the charges including any airfare, lodging and ground transportation is to be paid no latter than 2 weeks before the scheduled training date. If such amounts are not paid, Licensor may cancel the training session without any liability to licensee and may retain the deposit paid by Licensee. In the event the training is cancelled by Licensor due to Licensee’s failure to promptly pay any fees required by this Paragraph, any out of pocket expenses paid by Licensor, including by not limited to any airfare, lodging or ground transportation that exceed the deposit paid by Licensee, Licensee shall pay Licensor the difference between the deposit and the costs incurred by Licensor.
If Licensee needs to cancel or reschedule a training session, Licensee must provide Licensor with a minimum of 2 weeks prior notice for domestic trainings and 4 weeks prior notice for any training scheduled out side the continental United States (the “Notice Date”). Licensee will be responsible for any fees or costs associated with the cancellation or rescheduling of any airline lodging or ground transportation reservations. If Licensee cancels the training after the Notice Date, Licensor may keep the non-refundable deposit.
B. Error Corrections and Updates. Licensor may it at its sole option provide patches, bug fixes or other minor updates (“Patches & Fixes”) for the Software free of charge. Licensor grants to Licensee a non-exclusive perpetual fully paid up license to utilize the Patches & Fixes in conjunction with the Software. All Patches & Fixes shall be the sole property of Licensor
A. Printed Matter. Except as specifically set forth herein, no Software or Documentation which is provided by Licensor pursuant to this Agreement in human readable form, such as written or printed documents, shall be copied in whole or in part by Licensee without Licensor’s prior written agreement. Additional copies of printed materials may be obtained from Licensor at the charges then in effect.
B. Machine Readable Matter. Except as specifically set forth herein, any Software provided in machine readable form may not be copied by Licensee in whole or in part, except for Licensee’s backup or archive purposes. Licensee agrees to maintain appropriate records of the number and location of all copies of the Software and make such records available upon Licensor’s request. Licensee further agrees to reproduce all copyright and other proprietary notices on all copies of the Software in the same form and manner that such copyright and other proprietary notices are originally included on the Software.
8. LICENSE FEES AND PAYMENT
A. License Fee. In consideration of the licenses granted herein, Licensee shall pay the License Fee or other consideration for the Software and Documentation as set forth herein. All amounts payable hereunder by Licensee shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. Checks shall be made payable to Licensor and shall be forwarded to the Licensor at the above address. License Fees will be charged upon purchase of the License by Licensee. All other charges and fees will be assessed as specifically designated in this Agreement. For any amounts which are invoiced to Licensee, any invoice not paid with 30 days of the date of the invoice shall accrue interest at the rate of 1.5% per month compounded monthly. Nonpayment of any fees contemplated by this Agreement shall constitute a material breach of the Agreement.
B. Taxes and Other Charges. Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software or Documentation hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.
C. Refunds. Since Licensor offer a free demo version of the Software which may be utilized by Licensee prior to purchase of User Seats, Licensor does not offer refunds. Licensor will exchange or replace any goods (CD’s etc.) damaged during shipment. If Licensee receives goods damaged during shipment, Licensee must exchange the product within 30 days of receipt of the damaged goods by sending the damaged goods back to Licensor at the return address listed on the shipping label of the packaging.
9. PROTECTION OF SOFTWARE
A. Proprietary Notices. Licensee agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software, and to reproduce and include same on each copy of the Software.
B. No Reverse Engineering. Licensee agrees not to modify, reverse engineer, disassemble, or decompile the Software, or any portion thereof.
C. Ownership. Licensee further acknowledges that all copies of the Software in any form provided by Licensor or made by Licensee are the sole property of Licensor and/or its suppliers. Licensee shall not have any right, title, or interest to any such Software or copies thereof except as provided in this Agreement, and further shall secure and protect all Software and Documentation consistent with maintenance of Licensor’s proprietary rights therein.
A. Acknowledgement. Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of Licensor and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.
B. Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (1) have been known publicly; (2) have been known generally in the industry before communication by the disclosing party to the recipient; (3) have become know publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (4) have been known otherwise by the recipient before communication by the disclosing party; or (5) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
C. Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will: (1) substantially diminish the value to Licensor of the trade secrets and other proprietary interests that are the subject of this Agreement; (2) render Licensor’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (3) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, Licensor shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
D. Survival. Licensee’s obligations under this Section will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
11. WARRANTIES; SUPERIOR RIGHTS
A. Ownership. Except for any rights as set forth herein, Licensor represents its belief that it is the owner of the entire right, title, and interest in and to Software, and that it has the sole right to grant licenses there under, and that it has not knowingly granted licenses there under to any other entity that would restrict rights granted hereunder except as stated herein.
B. Limited Warranty. Licensor represents and warrants to Licensee that the Software, when properly installed by Licensee and used with the Required Equipment, will perform substantially as described in Licensor’s then current Documentation for such Software for a period of ninety (90) days from the date of original purchase.
C. Limitations. Notwithstanding the warranty provisions set forth herein, all of Licensor’s obligations with respect to such warranties shall be contingent on Licensee’s use of the Software in accordance with this Agreement and in accordance with Licensor’s instructions as provided by Licensor in the Documentation, as such instructions may be amended, supplemented, or modified by Licensor from time to time. Licensor shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.
D. Licensee’s Sole Remedy. Licensor’s entire liability and Licensee’s exclusive remedy shall be, at Licensor’s option, either: (1) return of the price paid; or (2) repair or replacement of the Software upon its return to Licensor; provided Licensor receives written notice from Licensee during the warranty period of a breach of warranty. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
E. Disclaimer of Warranties. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY LICENSOR. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF LICENSOR IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF LICENSOR AS SET FORTH HEREIN.
F. Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH LICENSOR IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY LICENSOR OF THE RISK OF LICENSEE’S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT LICENSOR SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of Licensor to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Licensee hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Licensor by Licensee for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Licensor arising out of this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were Licensor to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
A. Licensor shall indemnify, hold harmless and defend Licensee against any action brought against Licensee to the extent that such action is based on a claim that the unmodified Software, when used in accordance with this Agreement, infringes a United States copyright and Licensor shall pay all costs, settlements and damages finally awarded; provided, that Licensee promptly notifies Institution in writing of any claim, gives Licensor sole control of the defense and settlement thereof and provides all reasonable assistance in connection therewith. If any Software is finally adjudged to so infringe, or in Licensor’s opinion is likely to become the subject of such a claim, Licensor shall, at its option, either: (1) procure for Licensee the right to continue using the Software (2) modify or replace the Software to make it noninfringing, or (3) refund the fee paid, less reasonable depreciation, upon return of the Software. Licensor shall have no liability regarding any claim arising out of: (a) use of other than a current, unaltered release of the Software unless the infringing portion is also in the then current, unaltered release, (b) use of the Software in combination with non-Licensor software, data or equipment if the infringement was caused by such use or combination, (c) any modification or derivation of the Software not specifically authorized in writing by Licensor or (d) use of third party software. THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR AND THE EXCLUSIVE REMEDY FOR LICENSEE RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE.
B. Except for the foregoing infringement claims, Licensee shall indemnify and hold harmless Licensor, their officers, agents and employees from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of Licensee’s modification or enhancement of the Software or otherwise caused by, or arising out of, or resulting from, the exercise or practice of the license granted hereunder by Licensee, its sublicensees, if any, its subsidiaries or their officers, employees, agents or representatives.
Either party may terminate this Agreement on thirty (30) days written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the thirty (30) days period, the breaching party fails to cure such breach.
14. POST TERMINATION RIGHTS
A. Upon the expiration or termination of this Agreement, all rights granted to Licensee under this Agreement shall forthwith terminate and immediately revert to Licensor and Licensee shall discontinue all use of the Software.
B. Upon expiration or termination of this Agreement, Licensor may require that the Licensee transmit to Licensor, at no cost, all material relating to the Software including all copies of the Software and Documentation.
Licensor shall have the right, in its sole discretion, to prosecute lawsuits against third persons for infringement of Licensor’s rights in the Software.
Licensee agrees to defend, indemnify and hold Licensor, its officers, directors, agents and employees, harmless against all costs, expenses and losses (including reasonable attorneys’ fees and costs) incurred through claims of third parties against Licensor based on Licensee’s use of the Software, except for any actions which invoke Licensor’s indemnity obligations under Paragraph 12 due to intellectual property matters.
17. Force Majeure
Neither party shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, or inability of carriers to make scheduled deliveries, and any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event.
A. Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested or delivered by a national overnight express service.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
19. JURISDICTION AND DISPUTES
A. This Agreement shall be governed by the laws of Colorado.
B. All disputes hereunder shall be resolved in the applicable state or federal courts of Colorado. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
20. AGREEMENT BINDING ON SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
The license granted hereunder is personal to Licensee and may not be assigned by any act of Licensee or by operation of law unless in connection with a transfer of substantially all the assets of Licensee or with the consent of Licensor.
24. PRIOR AGREEMENTS
This Agreement, including any SOW’s promulgated in accordance with this Agreement constitute the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.